The courts in Azerbaijan easily and quickly issue unjustified sentences to dissidents


Samir Ashurov

Analysis of violation of law during Samir Ashurov’s judicial proceedings

Baku City Grave Crimes Court

Case № 1(101)-224/2023

18 December 2023

Presiding judge: Faiq Qaniyev

Judges: Mahmud Agalarov, Samir Aliyev

Defendant: Samir Ashurov

Defender: Elchin Sadiqov

Complainant: Elshan Nabiyev

Representative of complainant: Nazim Mehdiyev

The State Prosecutor: Babakhan Hasanaliyev, a Prosecutor of the Prosecution Support Department within the Serious Crimes Courts at the State Prosecution Support Directorate under the General Prosecutor’s Office of the Azerbaijan Republic

Samir Ashurov, born in 1984, was previously a member of the REAL political party. The political activist was first put under administrative arrest on 13 March 2018, when the Baku City Sabayil District Court issued a ruling on the administrative case against S. Ashurov. At that time, he was found guilty of committing offenses under the Articles 521 (Violation of regulations regarding the control of household noise) and 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic and sentenced to 30 days of administrative arrest.

On 28 April 2018, just two weeks later after his release, Samir Ashurov was detained for the second time and on the very same day he was found guilty of committing an administrative offense under the Article 206 (Illegal consumption of narcotic drugs, psychotropic substances, manufacturing, acquisition, storage, transportation or shipping, not for the purpose of sale, in the amount necessary for personal consumption) of the Code of Administrative Offenses of the Azerbaijan Republic. He was sentenced to another 60 days of administrative detention by the ruling of the Baku City Sabunchi District Court, and sentenced to another 60 days of administrative arrest.

Following his release in 2018, S. Ashurov along with his family emigrated to Germany, where he participated in a number of protests against the policy of the Azerbaijani authorities and the German authorities actions.  In 2020, S. Ashurov quit the REAL party. On 29 March 2022, S.Ashurov together with his wife and two young children were deported to Azerbaijan.

It should be reminded that in recent years, Ziya Ibrahimli, Jafar Mirzoyev, Punkhan Karimli, Mutallim Orujev and Malik Rzayev had been deported from Germany to Azerbaijan where they were later convicted. –

On 19 April 2022, Mr. Ashurov was detained under the Article 126.2.4 (Deliberate causing of serious harm to health, committed publicly dangers a way, from hooligan prompting) of the Criminal Code of the Azerbaijan Republic (hereinafter CC). On 20 April 2022, Mr. Ashurov was brought as a suspect, on 21 April he was charged as an accused and a preventive measure in the form of remand in custody was imposed on him.

In July 2022, S. Ashurov was charged with another offence under the Article 221.3 (The hooliganism committed with application of a weapon or subjects, used as the weapon)of the AR Criminal Code.

According to the investigation, on 19 April 2022, at about 21:15, Samir Ashurov was walking along one of Baku streets. A certain Elshan Nabiyev was walking towards him, and an argument arose between him and Mr Ashurov. S.Ashurov allegedly pushed Nabiyev with his shoulder, thereby committing an act of bullying. A fight broke out between the two men, following which Ashurov pulled out a household knife and inflicted two wounds in Nabiev’s abdomen that were dangerous to his health and penetrated his small intestine.

Samir Ashurov, who was interrogated in the Court as a defendant, did not plead guilty to the charges brought against him and testified that, knowing in advance about the planned arrest against him, he had been living in a rented flat rather than his own. Having returned from Germany to Azerbaijan and knowing about the imminent arrest, Samir Ashurov had been trying to protect himself from arrest for 21 days.

On 19 April 2022, while talking to his wife on the phone, he saw a man who attacked him shouting. At that point, Ashurov realised that it was a provocation that would lead to his further arrest. The man knocked Ashurov to the ground, at the same time he covered his face with his left hand to avoid being hit on the pavement. The man fell on top of him. There was not even any dialogue between them. Then, the man ran shouting “Police, police!”. Immediately, 5-6 unfamiliar men emerged and grabbed Ashurov. One of them placed a knife in his pocket with the words “This is your knife”. After that, Ashurov was brought to the 24th Baku city Nizami District Police Department of the Ministry of Internal Affairs, where he was subjected to physical violence. He was beaten with fists and feet. S.Ashurov told the police officers who were beating him that he had never carried a knife and inflicted any injuries on anyone, he had been frankly given a knife. But he couldn’t stand brutal beatings any longer and confessed that the knife was his.

Elshan Nabiyev, questioned as a victim at the trial, testified that on 19 April 2022, it happened that he and S. Ashurov got into a dispute, and the latter stabbed him. Nabiyev ran and felt that he was bleeding. There, he got down next to a tree and called an ambulance and the police. Then, he lost consciousness and woke up only in the hospital.

The wife of the defendant, Nurana Ashurova, questioned as a witness at the trial, testified that her family had been deported from Germany to Azerbaijan on 29 March 2022. A surveillance on her husband has been organised since that day. When they visited Samir’s father, they noticed a car with a licence plate 90-SC-318 next to the house, later seen near the clinic where the incident took place. Samir knew in advance about his imminent arrest; he said goodbye to his family even when he went out to throw out the trash. On 31 March, 2022, Ashurov was summoned to the General Prosecutor’s Office. At that time, he told the media that he could be arrested at any moment as four political activists had already been arrested earlier. Furthermore, Nurana Ashurova revealed that on 20 April, 2022, when Samir had already been arrested, she met with the investigator Rufat Ibayev. Ashurova asked Ibayev to provide her an information about the person who had allegedly been injured by her husband in order to visit him at the hospital. The investigator said that the man was at the Clinic No. 3. She went there. However, she did not manage to see Nabiyev, as outside the room there were the policemen who did not allow her to go in. N.Ashurova considers her husband innocent.

Nazar Yolchuyev, questioned as a witness at the trial, testified that he was a district police officer at the 24th Police Station. He also has a flat in the vicinity of the station. On 19 April 2022, together with another colleague, he was walking in the area around the Baku Nizami district when he heard a noise. They saw two men fighting and rushed straight to them. Samir Ashurov tried to run away but they managed to catch him. While holding his stomach, the second man started to call the ambulance. S.Ashurov was taken to the 24th Police Department. Afterwards, the appropriate investigative actions were carried out involving the forensic experts.

Questioned as a witness at the trial, Tariel Aliyev, a duty officer from the 24th Police Department, testified similarly to the testimony given by N. Yolchuyev.

Namig Shikhaliyev, a district police officer from the 24th Police Station, also questioned as a witness at the Court, testified that on 19 April 2022, he saw how one man was injured and the other was detained. S.Ashurov was brought to the police station and a knife was found in his possession.

Joshgun Qadimaliyev, an officer from the 24th Police Department, testified as a witness at the trial, and provided the similar to N. Shikhaliyev’s testimony. Other witnesses, Nariman Azizov, a senior interrogator from the 24th Department, and Jalal Aliyev, an operative from the 43rd Police Department, also testified as witnesses at the trial, confirming the investigation version of the story.

An eyewitness, Yusif Shirinli, testified that he lived in the vicinity of the 24th Police Station, and on 19 April 2022, he heard a noise and saw four people holding someone by the arms while the latter was trying to get away from them. He did not see any arms but noticed some blood stains on the pavement.

The record of the scene examination and seizure dated 19 April 2022, clearly indicated that drops of blood had been found at the site of the incident. The victim E. Nabiyev’s saliva samples were taken to determine his blood.

The forensic medical examination report from 20 April 2022, concluded that there had been found injuries on S. Ashurov’s body, the time of which coincided with 19 April 2022. These injuries were inflicted with a blunt object.

According to the forensic dactyloscopic examination dated 4 May 2022, the fingerprints on the knife matched Samir Ashurov’s fingerprints.

A forensic biological examination dated 30 June 2022, determined that the blood drops on the knife matched with the victim Elshan Nabiyev’s own blood type.

The Court considered S. Ashurov’s testimony to be in the nature of defence and evasion of criminal responsibility. The Court did not find any aggravating circumstances in the case.

On 18 December 2023, the Baku Court on Serious Crimes issued a verdict against Samir Ashurov. He was found guilty on the charges and sentenced to 6 years and 6 months imprisonment to be served in a penal colony of general regime.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

There are basic principles for the criminal proceedings listed in the Article 9 of the Criminal Procedure Code of the Republic of Azerbaijan. Among them are:

  • to establish rules as a basis for criminal prosecution;
  • to ensure a defence against restrictions on human and civil rights and liberties;
  • to determine the legality and grounds of every criminal prosecution.

The Article 9.2 of the Criminal Procedure Code of the Republic of Azerbaijan states,

Under the circumstances provided for in this Code, violation of the principles or conditions governing criminal proceedings may render the completed criminal proceedings invalid, cause the decisions taken during them to be annulled and deprive the evidence collected of its value.

The Law obliges the Courts and participants in criminal proceedings to comply with the Constitution of Azerbaijan and other provisions of the National and International Legislation.

Moreover, the Constitution of Azerbaijan stipulates the principle of separation of powers into executive, legislative and judicial ones. The Courts, as it is known, belong to the judicial power.

According to the Article 9 of the Courts and Judges ACT, direct or indirect restricting, undue influencing, threatening or interfering with court proceedings or acting in disrespect of the court and explicit disobedience by any person for any reason is inadmissible and shall entails liability provided by the legislation of the Republic of Azerbaijan.

Equally important is the observance of the presumption of innocence principle enshrined in the Article 63 of the Constitution of the Azerbaijan Republic and Article 21 of the Code of Criminal Procedure of the Azerbaijan Republic.

So, the above listed Norms and Principles of Judicial Proceedings that should be observed by the courts and judges. Now let us see what principles of legal proceedings have been observed in the criminal case against Samir Ashurov.

The evidentiary base is of fundamental importance in any criminal case. In order to establish the truth, it is necessary to comprehensively, fully and objectively examine all the evidence and give them a legal assessment in totality.

According to the Article 139 of the Code of Criminal Procedure of the Azerbaijan Republic,

during prosecution, the following may be determined only on the basis of evidence:

  • the facts and circumstances of the criminal act;
  • the connection of the suspect or accused with the criminal act;
  • the criminal ingredients of the act provided for in criminal law;
  • the guilt of the person in committing the act provided for in criminal law;
  • the circumstances which mitigate or aggravate the punishment for which criminal law provides;
  • if there is no other circumstance covered by this Code, the grounds for a request by a party to the criminal proceedings or another participant in the proceedings.

In this context, the Court failed to establish at least three facts: the existence of the criminal incident, the defendant’s connection to the criminal incident, mitigating and aggravating circumstances. While analysing the verdict, there are questions that remain unanswered: whether the instrument of crime (knife) belongs to Samir Ashurov, whether the crime was actually committed. Although the Court indicated that the presence of two young children as mitigating circumstances, but did not take it into account when imposing the punishment.

There are the following evidence in S. Ashurov’s case:

  • defendant’s testimony;
  • eyewitnesses’ testimonies;
  • victim’s testimony;
  • forensic examinations;
  • records of examinations, confrontations, etc.

As stated above, the witnesses in the case are the police officers and only one witness, Yusif Shirinli, who lived near the scene of the incident. The eyewitness did not testify that he had seen how Ashurov stabbed Nabiyev. Nor did he testify that he had seen a fight between Ashurov and Nabiyev. Shirinli had only seen the police officers seizing Ashurov.

The police officers usually testify favourable to the prosecution and support the accusation. The case was not an exception either. All the policemen’s testimonies were against the accused, as they had a direct interest in the outcome of the case. Their testimonies should not be taken as irrefutable.

The defendant’s testimony was not examined by the Court but was merely regarded as being in the nature of a defence.

As for the conclusions of forensic medical expertise, then a judge may take them into account but, in any case, should evaluate them in conjunction with other pieces of evidence.

According to the Article 25.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

Judges and jurors shall not be bound by the conclusions reached the prosecuting authorities during the investigation.

However, we see quite the opposite in practice. The conclusions reached by the investigative body constitute the grounds for the indictment. The verdicts contain arguments similar to the investigation version. One-sided and biased assessment of evidence leads to violation of the accused’s right to liberty.

In the commented case, the presumption of innocence principle enshrined in the Article 63 of the Constitution of the Azerbaijan Republic and Article 21 of the Code of Criminal Procedure of the Azerbaijan Republic was violated. According to Article 21 of the Code of Criminal Procedure of the Azerbaijan Republic,

  • Any person suspected of committing an offence shall be found innocent if his guilt is not proven in accordance with this Code and if the court has not delivered a final judgment to that effect.
  • Even if there are reasonable suspicions as to the guilt of the person, this shall not cause the latter to be found guilty. The accused (the suspect) shall receive the benefit of any doubts which cannot be removed in the process of proving the charge in accordance with the provisions of this Code, within the appropriate legal proceedings. He shall likewise receive the benefit of any doubts which are not removed in the application of criminal law and criminal procedure legislation;
  • The accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defence of the suspect or the accused.

The Article 21.2. of the Code of Criminal Procedure of the Azerbaijan Republic is rather important, since an individual can be considered guilty only if there are “grounded suspicions”. There are many doubts in the criminal case against S. Ashurov, none of which were interpreted in his favour.

The Article 21.3 of the Code of Criminal Procedure of the Azerbaijan Republic imposes the obligation on the investigating body to prove the accusation. It means that the investigative body must submit to the Court as much irrefutable evidence as it is necessary for the conviction and sentencing. We have reviewed above evidences that became the grounds for conviction.

They all raise serious doubts regarding their conclusiveness and legitimate acquisition.

There is another equally important point, which was also supported by the forensic medical examination report from 20 April 2022. The forensic medical examination reveals that there were injuries on S. Ashurov’s body, the time of infliction coinciding with 19 April 2022. The injuries had been inflicted with a blunt object. The injuries were found under his eye, on his left knee, right arm and in the chest area.

In the course of the trial S.Ashurov testified that he had been subjected to physical pressure at the 24th Police Department. His words were supported by the above-mentioned expert examination report.

Despite the totality of evidence confirming his words, the Court did not investigate that fact, did not evaluate the defendant’s testimony and the corresponding expertise report.

He further testified that he had been forced to take the knife out of his pocket himself, thus showing that it belonged to him. According to the Article 66 of the Azerbaijani Constitution, no one may be forced to testify against himself, his spouse, children, parents, brother or sister. “The right to silence” is also granted to the accused by the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1). Though it is not specifically stated in the Article 6 of the Convention, there is ample case law of the European Court of Human Rights that enshrines this right for the accused.

“The Court turns to its long-standing practice that, even if the Article 6 of the Convention is not directly referred to, the rights invoked by the applicants, namely the right to remain silent and the right not to testify against oneself, are universally recognised under international law, which constitute the essence of the notion of a fair trial enshrined in the above-mentioned Article. Their main purpose is, inter alia, to protect the accused against malicious coercion by the authorities, thereby helping to avoid judicial errors and achieving the Article 6 objectives. In particular, the right not to facilitate his/her own prosecution presupposes that in a criminal case the prosecution seeks to establish its case without having recourse to the means of proof obtained by compulsion or pressure, contrary to the will of the accused. In this respect, the right is closely linked to the principle of the presumption of innocence enshrined in Convention Article 6 para. 2″ (judgment of the European Court of Human Rights in the case of Heaney et McGuinness v. Ireland judgment of 21 December 2000){%22itemid%22:[%22001-59097%22]}

The Court did not examine the fact that S. Ashurov might have been subjected to physical violence while in the police custody, although the Convention, Article 3, prohibits ill-treatment and inhuman treatment. It is important that there are no exceptions in this Article and it applies in all cases.

Finally, the criminal procedure legislation imposes requirements on the verdict. According to the Article 349.3 of the Code of Criminal Procedure of the Azerbaijan Republic, the Court’s judgement must be lawful and substantiated.

The Article 349.4 of the Code of Criminal Procedure of the Azerbaijan Republic states,

The court judgment shall be considered lawful if it fulfils the requirements of the Constitution of the Azerbaijan Republic, this Code and the criminal and other legislation of the Azerbaijan Republic.

A judgement of the Court shall be recognised as substantiated in the following cases:

  • if the conclusions drawn by the Court are based only on the evidence examined at the trial;
  • if such evidences are sufficient for the prosecution assessment;
  • if the circumstances determined by the Court are in accordance with the examined evidence (Article 349.5 of the Code of Criminal Procedure of the Azerbaijan Republic).

As we can see, the Court did not take into account the above-mentioned procedural law norms, thereby violating in respect of S. Ashurov a number of fundamental rights, namely the right not to be subjected to ill-treatment and torture (Article 3), the right to liberty and security of person (Article 5(1), the right to a fair trial (Article 6 (paragraphs 1 and 2) and other similarly important rights enshrined in the European Convention.